M/S.HEERA CONSTRUCTION COMPANY PVT. LTD vs. THE ASSISTANT COMMISSIONER OF INCOME CIRCLE -1(1)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR TUESDAY, THE 10TH DAY OF APRIL 2018 / 20TH CHAITHRA, 1940 WP(C).No. 10389 of 2018 PETITIONER(S) M/S.HEERA CONSTRUCTION COMPANY PVT. LTD. HEERA PARK, M.P.APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014, REPRESENTED BY ITS DIRECTOR, SHRI SUBIN ABDUL RASHEED. BY ADVS.SRI.T.M.SREEDHARAN (SR.) SRI.V.P.NARAYANAN SMT.VANDANA MENON RESPONDENT(S): 1. THE ASSISTANT COMMISSIONER OF INCOME CIRCLE -1(1) AAYAKAR BHAVAN, KAWDIAR, THIRUVANANTHAPURAM - 695 003. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) AAYAKAR BHAWAN, KOWDIAR, THIRUVANANTHAPURAM - 695 003. 3. THE PRINCIPAL COMMISSIONER OF INCOME TAX 4TH FLOOR, AAYAKAR BHAWAN, KOWDIAR, THIRUVANANTHAPURAM - 695 003. BY SRI.CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 10389 of 2018 (W) APPENDIX PETITIONER(S)' EXHIBITS EXHIBIT P1. TRUE COPY OF COPY OF THE ASSESSMENT ORDER DATED 27.12.2017 ALONG WITH DEMAND NOTICE PASSED BY THE 1ST RESPONDENT FOR THE ASST. YEAR 2015-16. EXHIBIT P2. TRUE COPY OF MEMORANDUM OF APPEAL DATED 01.02.2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR 2015-16. EXHIBIT P2(A). TRUE COPY OF STAY PETITION DATED 20.03.18 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR 2015-16 EXHIBIT P3. TRUE COPY OF ORDER DATED 12.03.2018 PASSED BY THE 1ST RESPONDENT U/S 221(1) ALONG WITH DEMAND NOTICE. EXHIBIT P4. TRUE COPY OF MEMORANDUM OF APPEAL DATED 20.03.2018 FILED AGAINST ORDER U/S.221(1) BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR 2015-16. EXHIBIT P4(A). TRUE COPY OF STAY PETITION DATED 15.03.2018 FILED AGAINST ORDER U/S.221(1) BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR 2015-16. EXHIBIT P5. TRUE COPY OF NOTICE DATED 12.03.2018 ISSUED TO THE PETITIONER COMPANY BY THE 3RD RESPONDENT FOR THE ASST. YEAR 2015-16. EXHIBIT P5(A). TRUE COPY OF NOTICE DATED 12.03.2018 ISSUED TO THE MANAGING DIRECTOR OF THE PETITIONER COMPANY, SHRI ALIYAR KUNJU ABDUL RASHEED BY THE 3RD RESPONDENT FOR THE ASST. YEAR 2013-14. EXHIBIT P5(B). TRUE COPY OF NOTICE DATED 12.03.2018 ISSUED TO THE MANAGING DIRECTOR OF THE PETITIONER COMPANY, SHRI ALIYAR KUNJU ABDUL RASHEED BY THE 3RD RESPONDENT FOR THE ASST. YEAR 2014-15. EXHIBIT P5(C). TRUE COPY OF NOTICE DATED 12.03.2018 ISSUED TO THE MANAGING DIRECTOR OF THE PETITIONER COMPANY, SHRI ALIYAR KUNJU ABDUL RASHEED BY THE 3RD RESPONDENT FOR THE ASST. YEAR 2015-16. EXHIBIT P5(D). TRUE COPY OF NOTICE DATED 14.03.2018 ISSUED TO THE DIRECTOR OF THE PETITIONER COMPANY, SMT.SUNITHA ABDUL RASHEED BY THE 3RD RESPONDENT FOR THE ASST. YEAR 2014-15.

EXHIBIT P5(E). TRUE COPY OF NOTICE DATED 12.03.2018 ISSUED TO THE DIRECTOR OF THE PETITIONER COMPANY, SMT.SUNITHA ABDUL RASHEED BY THE 3RD RESPONDENT FOR THE ASST. YEAR 2015-16. EXHIBIT P5(F). TRUE COPY OF NOTICE DATED 14.03.2018 ISSUED TO THE DIRECTOR OF THE PETITIONER COMPANY, SRI.SUBIN ABDUL RASHEED BY THE 3RD RESPONDENT FOR THE ASST. YEAR 2014-15. EXHIBIT P5(G). TRUE COPY OF NOTICE DATED 12.03.2018 ISSUED TO THE DIRECTOR OF THE PETITIONER COMPANY, SRI.SUBIN ABDUL RASHEED BY THE 3RD RESPONDENT FOR THE ASST. YEAR 2015-16. EXHIBIT P6. TRUE COPY OF REPLY DATED 19.03.2018 SUBMITTED BY THE PETITIONER COMPANY TO THE 3RD RESPONDENT. EXHIBIT P6(A). TRUE COPY OF REPLY DATED 19.03.2018 SUBMITTED BY ALIYAR KUNJU ABDUL RASHEED, MANAGING DIRECTOR OF THE PETITIONER COMPANY TO THE 3RD RESPONDENT. EXHIBIT P6(B). TRUE COPY OF REPLY DATED 19.03.2018 SUBMITTED BY SUNITHA ABDUL RASHEED, DIRECTOR OF THE PETITIONER COMPANY TO THE 3RD RESPONDENT. EXHIBIT P6(C). TRUE COPY OF REPLY DATED 19.03.2018 SUBMITTED BY SUBIN ABDUL RASHEED, DIRECTOR OF THE PETITIONER COMPANY TO THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS:NIL //TRUE COPY// SD/- PA TO JUDGE rsr

P.B.SURESH KUMAR, J. -------------------------------------------- W.P.(C).No.10389 of 2018 --------------------------------------------------------------- Dated this the 10th day of April, 2018 J U D G M E N T

Petitioner is an assessee under the Income Tax Act (the Act) on the rolls of the first respondent. The petitioner did not file return for the assessment year 2015- 16, nor did they pay the admitted tax due for the previous year. The assessment of the petitioner for the said year was therefore completed under Section 144 of the Act in terms of Ext.P1 order raising a demand for Rs.9,09,42,590/-. The petitioner challenged Ext.P1 order in appeal before the second respondent. Ext.P2 is the appeal preferred by the petitioner in this connection. Ext.P2(a) is the stay petition preferred by the petitioner in Ext.P2

WPC.No.10389 of 2018 2 appeal. Ext.P2 appeal is still pending. While so, after issuing notice to the petitioner, penalty to the tune of Rs.3,90,58,821/- was also imposed on them in terms of Ext.P3 order under Section 221(1) of the Act. The petitioner challenged Ext.P3 order also in appeal. Ext.P4 is the appeal preferred by the petitioner in this regard. Ext.P4(a) is the stay petition preferred by the petitioner in Ext.P4 appeal. The grievance of the petitioner in the writ petition concerns the delay on the part of the second respondent in passing orders on the stay petitions preferred by the petitioner in Exts.P2 and P4 appeals. The petitioner therefore, seeks appropriate directions in this regard, in this writ petition. 2. Heard the learned counsel for the petitioner as also the learned Standing Counsel for the respondents. 3. It is seen that the taxable turnover of the petitioner for the assessment year 2015-16, as determined by the assessing officer in terms of Ext.P1 order is Rs.16,93,39,819/-, of which the petitioner has disputed only turnover to the tune of Rs.4,57,11,143/- in Ext.P2 appeal. In

WPC.No.10389 of 2018 3 other words, the petitioner admits the liability to pay tax and interest due in respect of the remaining turnover. When this fact was brought to the notice of the learned Senior Counsel for the petitioner, the learned Senior Counsel prayed for indulgence to pay the undisputed liability in six equal monthly instalments. The learned Senior Counsel relied on the pleadings of the petitioner in the writ petition as regards their inability to discharge the said liability in lump-sum to justify the said prayer. 4. Having regard to the facts and circumstances of the case, as also the orders passed by this Court in similar and identical writ petitions, this writ petition is disposed of as follows: (i) The petitioner shall pay the undisputed liability under Ext.P1 order with interest upto date, in six equal monthly instalments, of which the first instalment shall be paid within one month from today. It is made clear that if the petitioner commits default in remitting any one of the instalments as directed, the respondents will be free to

WPC.No.10389 of 2018 4 realise the admitted liability in lump-sum. (ii) The second respondent shall consider and pass orders on Exts.P2(a) and P4(a) stay petitions preferred by the petitioner in Exts.P2 and P4 appeals, within two months from the date of receipt of a copy of this judgment. (iii) Till Ext.P2(a) and P4(a) stay petitions are disposed of as directed above, further proceedings for realization of the tax disputed in Ext.P2 appeal as also the penalty covered by Ext.P3 order shall be deferred by the respondents concerned.

Sd/- P.B.SURESH KUMAR

JUDGE rsr // true copy //